USCIS Publishes FAQs for Individuals in H-1B Nonimmigrant Status

On July 17, 2024, USCIS published information intended to address common questions by individuals in H-1B nonimmigrant status, particularly related to applying for lawful permanent resident (LPR) status, job changes or terminations, international travel, and dependent family members.  The information in this FAQ includes:

• An eligible H-1B worker can change employers as soon as the new employer’s nonfrivolous H-1B petition is properly filed with USCIS.

• USCIS will not revoke a Form I-140 petition approval solely due to the termination of the petitioner’s business or the employer’s withdrawal, as long as the petition has been approved for at least 180 days or the associated adjustment of status application has been pending for at least 180 days, and the petition approval is not revoked on other grounds. In this scenario, the H-1B worker will retain their priority date.

• When an H-1B worker’s employment is terminated (either voluntarily or involuntarily), they typically may take one of several actions, such as changing to another nonimmigrant status, to remain in a period of authorized stay in the United States beyond 60 days.

The chart provided by USCIS here summarizes some common scenarios for H-1B workers. The information in this chart is general and does not capture all relevant details or considerations. Nonimmigrant should consult an immigration attorney for case-specific issues.

Update to Form I-9, Employer Eligibility Verification

On August 1 2024, a new edition of Form I-9 was made available to employers. According to this update, Employers should use the 08/01/23 edition of Form I-9. This edition will have an expiration date of either 07/31/2026 or 05/31/2027.

Starting August 1, 2026, employers should use the Form I-9 version with the 05/31/2027 expiration date.

White House Memorandum on the Deferred Enforced Departure for Certain Lebanese Nationals

On July 26, 2022, the Biden Administration released a Memorandum on the Deferred Enforced Departure for Certain Lebanese Nationals based on deteriorating humanitarian conditions in the region. This memo directs the Department of Homeland Security to take measures to defer the removal of any Lebanese national present in the U.S. as of the memo’s release, except for:

(1)  those who have voluntarily returned to Lebanon after the date of this memorandum;

(2)  those who have not continuously resided in the United States since the date of this memorandum;

(3)  those who are inadmissible under section 212(a)(3) of the Immigration and Nationality Act (INA) (8 U.S.C. 1182(a)(3)) or deportable under section 237(a)(4) of the INA (8 U.S.C. 1227(a)(4));

(4)  those who have been convicted of any felony or two or more misdemeanors committed in the United States, or who meet any of the criteria set forth in section 208(b)(2)(A) of the INA (8 U.S.C. 1158(b)(2)(A));

(5)  those who are subject to extradition;

(6)  those whose presence in the United States the Secretary of Homeland Security has determined is not in the interest of the United States or presents a danger to public safety; or

(7) those whose presence in the United States the Secretary of State has reasonable grounds to believe would have potentially serious adverse foreign policy consequences for the United States.

This memo further directs DHS to take appropriate measures to authorize employment for noncitizens whose removal has been deferred, as provided by this memorandum, for the duration of such deferral, and to consider suspending regulatory requirements with respect to F-1 nonimmigrant students who are Lebanese nationals as the Secretary of Homeland Security determines to be appropriate.  

New Reports on Visa Denials for African Applicants Highlight Disparities

On July 8, 2024, a report from Shorelight and the President’s Alliance on Higher Education was released providing data on trends in U.S. student visa applications and denials from 2015 to 2022.  According to the data in this report, with the exception of four countries in southern Africa, visa denial rates for African applicants have been increasing since 2015, when Africa had a visa denial rate of 44 percent compared to denial rates of 30, 8, and 7 percent for Asia, Europe, and South America, respectively.  These disproportionate results are echoed in a July 28th  report from international news outlet Semafor, although they property submit the lowest number of applications, African students are rejected at a rate of 30 percent in Europes Schengen area as well. 

DHS Notice of Employment Authorization for Yemeni and Somali F-1 Nonimmigrant Students

On July 10, 2024, The U.S. Dept of Homeland Security (DHS) issued a notice suspending certain regulatory requirements for F-1 nonimmigrant students from Yemen who are experiencing severe economic hardship as a direct result of the current crisis in Yemen. This action covers eligible Yemeni F-1 nonimmigrant students beginning on September 4, 2024, and ending on March 3, 2026.  On July 22, 2024, the U.S. Dept of Homeland Security (DHS) issued a similar notice suspending certain regulatory requirements for F-1 nonimmigrant students from Somalia who are experiencing severe economic hardship as a direct result of the current crisis in Somalia.  This action is effective beginning on September 18, 2024, and ending on March 17, 2026.

These notices apply only to F-1 nonimmigrant students who meet all of the following conditions:

(1) Are a citizen of Yemen or Somalia regardless of country of birth (or an individual having no nationality who last habitually resided in Yemen or Somalia);

(2) Were lawfully present in the United States on the date of publication of these notices in F-1 nonimmigrant status under section 101(a)(15)(F)(i) of the Immigration and Nationality Act (INA), 8 U.S.C. 1101(a)(15)(F)(i);

(3) Are enrolled in an academic institution that is Student and Exchange Visitor Program (SEVP)-certified for enrollment for F-1 nonimmigrant students;

(4) Are currently maintaining F-1 nonimmigrant status; and

(5) Are experiencing severe economic hardship as a direct result of the current crisis in Yemen or Somalia.

This notice applies to F-1 nonimmigrant students in an approved private school in kindergarten through grade 12, public school grades 9 through 12, and undergraduate and graduate education. An F-1 nonimmigrant student covered by ICE’s notice who transfers from one SEVP-certified academic institution to another certified institution remains eligible for the relief provided by this notice.

ICE Notice Amending the DHS STEM Designated Degree Program List

On July 22, 2024, The U.S. Department of Homeland Security (DHS) published a Federal Register notice, announcing the addition of one Classification of Instructional Programs (CIP) code to the DHS STEM Designated Degree Program List.  The CIP code being added to the list is Environmental/Natural Resource Economics (03.0204).

The DHS STEM Designated Degree Program List is a complete list of fields of study that DHS considers to be science, technology, engineering and mathematics (STEM) for the purpose of the 24-month STEM extension of optional practical training (OPT). As part of the 2016 STEM OPT final rule, “Improving and Expanding Training Opportunities for F-1 Nonimmigrant Students With STEM Degrees and Cap-Gap Relief for All Eligible F-1 Students,” DHS noted that it envisioned making “periodic updates to the STEM list in response to changes in STEM fields, academic programs, or technological trends” and would “review recommendations from the public concerning potential additions or deletions to the list.” After reviewing nominations submitted by interested parties, including members of the public, DHS is adding one field of study, as identified by a unique CIP code, to the list. No CIP codes or fields of study have been removed from the list as part of this update.

Additional information on how to nominate CIP codes can be found at ICE.gov/SEVIS/Schools, under the DHS STEM Designated Degree Program List and CIP Code Nomination Process header.

Easing the Nonimmigrant Visa Process for U.S. College Graduates

On July 15, 2024, the Department of State has clarified guidance regarding waivers of inadmissibility given to consular officers based on actions announced by the Biden-Harris Administration to more efficiently process employment-based nonimmigrant visas for those who have graduated from college in the United States and have a job offer. 

The purpose of these clarifications is to explain when consular officers should consider recommending waivers of inadmissibility under INA section 212(d)(3) for these applicants on an expedited basis, in conjunction with visa applications overseas.  All other processing steps remain the same, and waiver requests are adjudicated by the Department of Homeland Security, U.S. Customs and Border Protection’s Admissibility Review Office. 

Individuals will still need to apply for a nonimmigrant visa after USCIS has approved the underlying immigrant visa petition (such as H-1B or other temporary work visas). There are several steps in the visa application process.  The order of these steps and how applicants complete them may vary at the U.S. embassy or consulate where they apply.  Applicants who are denied a visa will be notified by the consular officer of the relevant ground of ineligibility and whether they are eligible for a waiver of that ineligibility. Waivers are available for certain grounds of inadmissibility under Section 212(a) of the Immigration and Nationality Act.

USCIS Issues Policy Guidance on Children’s Acquisition of Citizenship

On July 18, 2024, USCIS announced updated guidance in the USCIS Policy Manual regarding provisions for children’s acquisition of citizenship in response to public feedback as well as the U.S. Supreme Court decision in Sessions v. Morales-Santana, 582 U.S. 47 (2017), as well as clarifying other provisions related to acquisition of citizenship.

The updated guidance is as follows:

• Affirms that applicants who already filed an application for a Certificate of Citizenship and were denied but later become eligible for a Certificate following a change in USCIS policy, may file a motion to reopen the prior USCIS denial of their application.

• Clarifies that a U.S. citizen parent may meet the requirement of physical presence in the United States (or outlying possession) before the child’s birth while in any immigration status, or no status.

• Clarifies that in cases where a child is born out of wedlock to two U.S. citizen parents and cannot acquire U.S. citizenship from the father, the mother meets the requirement by demonstrating 1 year of continuous physical presence in the United States or one of its outlying possessions before the child’s birth.

• Affirms that, for purposes of acquiring citizenship at birth, USCIS requires that a parent must be recognized as a legal parent of the child by the relevant jurisdiction at the time of the child’s birth.

• Clarifies that a child acquires citizenship under statutes requiring all conditions to be met while the child is under 18 years of age if the last condition was satisfied on the day of the child’s 18th birthday. Similarly, a child is eligible to obtain citizenship under INA 322 if USCIS approves the application and the child takes the oath (if required) on the day of the child’s 18th birthday.

• Confirms that USCIS accepts a valid and unexpired U.S. passport or a Consular Report of Birth Abroad (CRBA) as evidence of U.S. citizenship. However, USCIS also determines whether the applicant properly acquired U.S. citizenship and if necessary, may request that the Department of State revoke the U.S. passport or cancel the CRBA before USCIS adjudicates an application for a Certificate of Citizenship.

• Clarifies processes when USCIS, in addition to an applicant’s claim of U.S. citizenship, adjudicates claims to U.S. citizenship for an applicant’s parents or grandparents (sometimes called “nested claims of U.S. citizenship”). When adjudicating applications for a Certificate of Citizenship, if an applicant’s parent or parents’ U.S. citizenship is unknown or unclear, the officer must determine the applicant’s parents’ (and, if necessary, grandparents’) U.S. citizenship status before adjudicating the applicant’s citizenship claim.

• Clarifies that for purposes of an application for naturalization filed under the provision for children of a U.S. citizen who subjected them to battery or extreme cruelty, a stepchild’s relationship with the U.S. citizen stepparent does not need to continue to exist at the time of the application for naturalization.

The update also includes various changes to nationality charts in the Policy Manual.  This guidance is effective immediately.

Extension and Redesignation of Yemen and Somalia for TPS

On July 8, 2024, the Department of Homeland Security announced the extension and redesignation of Yemen for Temporary Protected Status for 18 months, from September 4, 2024, to March 3, 2026.   On July 19, 2024, DHS announced the extension and redesignation of Somalia for Temporary Protected Status for 18 months, from September 18, 2024, to March 17, 2026.

This extension allows current Yemeni TPS beneficiaries to retain TPS through March 3, 2026 and allows Somalian TPS beneficiaries to retain TPS through March 17, 2026, if they continue to meet TPS eligibility requirements. Current TPS beneficiaries who wish to extend their status through March 3, 2026 for Yemen and March 17, 2026 for Somalia, must re-register during the 60-day re-registration period from July 10, 2024 through September 9, 2024 for Yemen and from July 22, 2024 through September 20, 2024 for Somalia, to ensure they keep their TPS and employment authorization.

The Federal Register notices for Yemen and Somalia for these announcements provide information about registering for TPS as a new or current beneficiary under these extensions and redesignations. The Federal Register notice explains eligibility criteria, timelines, and procedures necessary for current beneficiaries to re-register and renew EADs, and for new applicants to submit an initial application under the redesignation and apply for an EAD.

This announcement also included a notice of Special Student Relief for F-1 nonimmigrant students whose country of citizenship is Yemen or Somalia, or individuals having no nationality who last habitually resided in Yemen or Somalia.  Eligible students may request employment authorization, authorization to work an increased number of hours while school is in session, and reduce their course load while continuing to maintain F-1 status through the TPS designation period. 

Individuals with a pending Form I-821, Application for Temporary Protected Status, or a related Form I-765, Application for Employment Authorization, as of the dates of these announcements do not need to file either application again. If USCIS approves a pending Form I-821 or Form I-765 filed under the previous designation of TPS for Yemen or Somalia, USCIS will grant the individual TPS through March 3, 2026 (Yemen) or March 17, 2026 (Somalia), and issue an EAD valid through the same date.

Under the redesignation of Somalia, eligible individuals who do not have TPS may submit an initial Form I-821, Application for Temporary Protected Status, during the initial registration period that runs from July 22, 2024 through March 17, 2026. Applicants also may apply for TPS-related EADs and for travel authorization. Applicants can request an EAD by submitting a completed Form I-765 with their Form I-821, or separately at a later date.

USCIS Will Conduct Second Random Selection for Regular Cap from Previously Submitted FY 2025 H-1B Cap Registrations

On July 30, 2024, USCIS announced that they would need to select additional registrations for unique beneficiaries to reach the FY 2025 regular cap numerical allocation. USCIS announced that this second selection was completed on August 5, 2024. According to this announcement, USCIS has selected additional registrations for unique beneficiaries from previously submitted electronic registrations using a random selection process and has notified prospective petitioners with selected registrations from this second round of selection that they are eligible to file an H-1B cap-subject petition for the beneficiary named in the applicable selected registration.  

The initial random selection of those registered in the FY2025 H-1B lottery took place in March, including for beneficiaries eligible for the advanced degree exemption. Only those petitioners with selected registrations for FY 2025 are eligible to file H-1B cap-subject petitions during the filing period on their registration selection notice.  Previously selected registrants for FY 2025 were required to file their petitions between April 1 and June 30, 2024.   Those selected in the second round will be required to file their petitions between August 8, 2024 and November 7, 2024. 

USCIS has confirmed that there will not be a second selection for the advanced degree exemption (the master’s cap), as enough master’s cap registrations were already selected, and sufficient petitions were received based on those registrations as projected to meet the FY 2025 masters cap numerical allocation. The second round of selection for the regular cap only includes previously submitted registrations that indicated eligibility for the master’s cap along with those that indicated only eligibility for the regular cap.

Those with selected registrations should receive updates via their USCIS online accounts updated to include a selection notice, which includes details of when and where to file